Calcutta High Court (Appellete Side)
Sri Palay Dutta & Ors vs Md. Ali Afsar & Ors on 5 April, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLAE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Shib Sadhan Sadhu
F.A. 80 of 2014
With
CAN 11029 of 2015
And
CAN 1141 of 20126
Sri Palay Dutta & Ors.
Versus
Md. Ali Afsar & Ors.
For the Appellant : Mr. Ajay Krishna Chatterjee, Sr. Adv.
: Mr. Jiban Ratan Chatterjee, Adv.,
: Mr. Partha Pratim Roy, Adv.,
: Mr. Sanjay Mukherjee, Adv.,
: Mr. Bijan Dutta, Adv.
For the respondent : Mr. Biswabrata Basu Mallick, Adv.,
Nos. 1-10 : Mr. Kishalaya Sarkar, Adv.
For the respondent : Mr. Saktinath Mukherjee, Sr. Adv.,
No.11 : Mr. Arindam Banerjee, adv.,
: Mr. Ashish Kumar Mukherjee, Adv.,
: Mr. Sushil Kumar Sewak, Adv.,
: Ms. Arpita Saha, Adv.
Heard on : 25.02.2016, 16.03.2016, 17.03.2016 &
21.03.2016.
Judgement on : 5th April, 2016
Jyotirmay Bhattacharya, J.: -
This first appeal is directed against the judgment and decree passed by the learned Civil Judge (Senior Division), 5th Court at Alipore on 12th October, 2012 in Title Appeal No.5 of 2005 at the instance of the plaintiff/appellant.
By the impugned judgment and decree the plaintiffs' suit for specific performance of contract was dismissed by the learned Trial Judge on contest by holding, inter alia, that the plaintiffs having failed to deposit the impounded fees on the agreement for sale, the agreement for sale cannot be admitted into evidence and as such, the said agreement for sale cannot be enforced by a decree for specific performance of contract. The learned Trial Judge also held that the contract is a time bound contract, and since the plaintiffs have failed to complete the transaction within the time fixed under the contract, the plaintiffs are not entitled to get any decree for specific performance of contract. The learned Trial Judge also held that the plaintiffs having failed to prove their readiness and willingness to perform their part of the contact, are not entitled to get any decree for specific performance of contract. The suit for specific performance of contract filed by the plaintiffs was thus, dismissed on the aforesaid three grounds. The legality and/or correctness of such judgment and decree passed by the learned Trial Judge are now under our scrutiny in this First Appeal.
Let us now consider the merit of the instant appeal in the facts of the present case. Initially the plaintiffs filed a suit for declaration that the defendant Nos.1 and 2 are bound to execute the deed of conveyance and/or conveyances and register the same through appropriate authority and thereby giving the legal title, interest and possession of the said property to the plaintiffs in terms of the said agreement and permanent injunction for restraining the defendants and/or their men and agents from transferring, selling and/or creating any lease or also alienating or encumbering the suit property in any manner and/or from dispossessing the plaintiffs from their possession.
Subsequently the plaint filed in the said suit was amended repeatedly and ultimately a decree for specific performance of contract was sought for by the plaintiffs in the said suit. It was contended in the amended plaint that the plaintiffs entered into an agreement with the defendant Nos. 1-9 on 22nd April, 2002 for purchasing the suit property for a consideration of Rs.21,00,000/- (Rupees twenty one lakhs). At the time of execution of the said agreement, the plaintiffs paid a sum of Rs.50,00,00/- (Rupees fifty thousand) to the defendant Nos. 1-9 towards earnest money being part payment of the consideration money. Rest of the consideration money was agreed to be paid within July, 2002. It was, however, provided in the said agreement that if the plaintiffs procure a developer and enter into an agreement with him for development of the suit property after recovering possession thereof from the unauthorized occupant who is in possession thereof after expiry of his lease, then the time for payment of the said sum of Rs.2,00,000/- (Rupees two lakh) towards the part payment of the balance consideration money will be extended by defendant Nos. 1-9. It was also provided that the said agreement will remain valid for a period of one year from the date of execution of the said agreement.
The plaintiffs claimed that in pursuance of the said agreement possession of the suit property was delivered to the plaintiffs by the defendant Nos. 1-9. It was also alleged by the plaintiffs that the plaintiffs paid all outstanding and current property taxes of the said premises in terms of the said agreement and also got the erroneous recording of the said property as Wakf property corrected by the Municipal authority and caused recording of the names of Msmt Ahimi Begum, Mr. Tusama etc. as Matawali thereof deleted from the assessment records of the Kolkata Municipal Corporation and also got the names of the defendant Nos. 1-9 recorded as owner of the said premises in the Municipal record. Immediately after the Municipal records were rectified in the manner as aforesaid, they procured a promoter and approached the defendant Nos. 1-9 for execution of the deed of sale by tendering the balance consideration money but the said defendants refused to complete the said transaction by executing a deed of sale in favour of the plaintiffs, even though they approved the draft tripartite agreement which was proposed to be entered into between the plaintiffs, defendant Nos. 1-9 and their procured promoter. Immediately thereafter the instant suit for specific performance of contract was filed.
It was further stated therein that before filing the instant suit, the plaintiffs through their learned Advocate Vabani Ranjan Chakraborty caused a notice dated 29th December, 2004 served upon the defendant Nos. 1-9 inviting them to perform their part of the contract but the defendant in reply to the plaintiffs' advocate's letter denied to execute the sale deed in favour of the plaintiffs as the time for completion of the said agreement in terms of the said contract, according to them, long expired.
The plaintiffs further stated in the plaint that they were all throughout ready and willing to complete the said transaction and are still ready and willing to complete the said transaction on payment of the balance consideration money but the defendant has refused to complete the said transaction in violation of the terms of the said contract.
Since the suit property was sold and transferred to the defendant No.10 by the defendant Nos. 1-9 even before the suit was filed, and further since during the pendency of this suit the defendant No.10 again sold and transferred his right, title and interest in the suit property to the defendant No.11, those two subsequent transferees were also added as defendant Nos. 10 & 11 respectively in the said suit by amendment of the plaint. The plaintiffs further claimed that since the defendant Nos. 10 & 11 purchased the suit property during the subsistence of the contract entered into between the plaintiffs and the defendant Nos. 1-9, the subsequent transferees are also bound by the contract which was entered into between the plaintiffs and the defendant Nos. 1-9. In the amended plaint a decree for specific performance of the said contract was prayed for. Injunction was also sought for against those transferees for restraining them from transferring the suit property and/or creating any third party interest therein and/or from demolishing the construction which existed on the suit property.
The defendant Nos. 1-9 contested the said suit by filing written statement denying the material allegations made out by the plaintiffs therein and they prayed for dismissal of the said suit as the plaintiffs failed to perform their duties in terms of the said agreement within the time fixed under the contract. It was further stated therein that possession of the suit property was never delivered to the plaintiffs. They claimed that plaintiffs failed to recover possession of the suit property from the unauthorized occupier, namely, Surajit Kumar Mitra and have also failed to pay a further sum of Rs.2,00,000/- (Rupees two lakhs) within July, 2002. It was further alleged that the plaintiffs also could not procure any promoter for developing the suit property within the time as agreed upon. Thus, they claimed that since the plaintiffs failed to prove their readiness and willingness to perform their part of the contract within the validity period of the said contract, they denied to execute a deed of conveyance in pursuance of the request made by the plaintiffs' advocate's letter. They also disclosed in the written statement that they sold and transferred the suit property in favour of the defendant No.10 for a valuable consideration, after the contract, entered into between the plaintiffs and the defendant Nos. 1-9 stood rescinded as the plaintiffs failed to complete the said transaction within the validity period of the said contract. The said defendants, thus, prayed for dismissal of the suit.
The defendant No.10 also contested the said suit by fling written statement. He claimed that he entered into an agreement for sale in respect of the suit property with the defendant Nos. 1-9 on 1st December, 2004 and immediately after entering into the said agreement with the defendant No. 1-9 he through his learned Advocate Sri Sailen Sen duly published a public notice in the daily issue of two news papers, namely, 'Ananda Bazar Patrika' and the 'Statesman' both on 4th December, 2004 informing the public in general that the defendant Nos. 1-9 have entered into an agreement for sale of the subject land and that if any person has any claim in respect of the said property, he may submit or notify his objection with supporting documents to his advocate, whose name and address was duly printed in the public notices, within 10 days from the date of the publication. He further claims that in response to the said public notice, no person farless the plaintiffs intimated the defendant No.10 and/or his learned Advocate about the agreement for sale which was entered into between the plaintiffs and the defendant Nos. 1-9 in respect of the said property and/or subsistence of any such contract between those parties at the relevant time and as such after the expiry of the notice period, he purchased the suit property from the defendant Nos. 1-9 for a valuable consideration.
He thus, claimed that he being a bona fide purchaser for value without notice, the agreement for sale which was entered into between the plaintiffs and the defendant Nos. 1-9 in respect of the suit property is not binding upon him. Thus he claimed that the plaintiffs cannot claim any relief in the said suit against the defendant No.10.
It was further alleged by him that before completing the said transaction he recovered possession of the suit property from the occupier thereof, who not only surrendered the possession in favour of the said defendant No. 10 but also he joined himself as a confirming party in the deed of sale executed by defendant Nos. 1-9 in favour of the defendant No.10, to admit therein that he surrendered his possession in the suit property in favour of the defendant No.10.
He thus, prayed for dismissal of the said suit.
The defendant No.11 also contested the said suit by filing written statement stating that as the plaintiffs failed and neglected to purchase the suit property from the defendant Nos. 1-9 within the stipulated time agreed upon between them, the suit property was transferred by the defendant Nos. 1-9 to the defendant No.10 after the earlier contract entered into between the plaintiffs and the defendant Nos.1-9 stood rescinded. They thus, claimed that the plaintiffs cannot claim any relief for specific performance of the said contract against the subsequent transfer as he purchased the suit property after the expiry of the validity period of the contract entered into between the plaintiffs and the defendant Nos. 1-9. It is stated therein that after purchasing the suit property from the defendant No.10, the said transferee viz. the defendant No.11 got his name mutated as owner thereof in the Municipal record and started raising construction of a multi-storied building thereon in accordance with the building plan sanctioned by the Municipal authority.
Thus, the said defendant also prayed for dismissal of the said suit. The parties led their evidence in support of their respective pleadings and the learned Trial Judge ultimately by his judgment and decree dated 12th October, 2012 dismissed the said suit for the reasons as aforesaid.
Mr. Chatterjee, learned Senior Counsel appearing for the appellant submitted before us that the contract which was entered into between the plaintiffs and the defendant Nos. 1-9 on 22nd April, 2002 was not a time bound contract as time for completion of the contract was not made an essence of the contract. He read the agreement, as a whole, and placed strong reliance upon Clause 9 of the said contract wherein it was provided that the purchaser will have to pay a further sum of Rs.2,00,000/-(Rupees Laks) within July, 2002 and the time for such payment of Rs.2,00,000/- (Rupees two lakhs) towards part payment of the consideration money will be extended if the proposed purchasers can procure a developer and enter into a development agreement with the promoter for developing the said property jointly. By referring to the said Clause of the said agreement, Mr. Chatterjee submitted that the time limit for completion of the said transaction which was fixed in Clause 10 of the said agreement i.e. one year from the date of execution of the contract, in fact, stood diluted by incorporation of Clause 9 in the said agreement and also by the subsequent conduct of the parties. He pointed out that even after the expiry of the stipulated period for completion of the said transaction, the defendant Nos.1-9 handed over the relevant papers relating to correction of the erroneous recording of the property as a Wakf property represented by Matwalis in the Municipal records to the plaintiffs who in fact, caused all such corrections made in the Municipal records and paid the Municipal taxes of the said premises even after expiry of the stipulated period fixed in the contract for completion of the said transaction. He thus, submitted that though the agreement provides for completion of the said transaction within one year from the date of execution of the said agreement but the parties by their conduct got the said agreement extended by giving a go bye to the Clause 10 of the said agreement. By referring to the draft tripartite agreement he submitted that since the draft was approved by the defendant No.1-9, the learned Court below should have held that his client was able to procure a promoter to develop the suit property, and thus, the time for performance of the contract stood extended by virtue of Clause 9 of the said Agreement, by giving a go-bye to clause 10 of the said agreement. He thus argued that since the plaintiffs approached the Court seeking specific performance of the contract within the period of limitation, the learned Trial Judge ought not to have refused to pass a decree for specific performance of contract in favour of the plaintiffs on the ground that the plaintiffs failed to complete the said transaction within the time fixed under the contract. In support of such submission he relied upon a decision of the Hon'ble Supreme Court in the case of Hind Construction Contractors by its sole proprietor Bhikamchand Mulchand Jain (dead) by L. R's., Vs. State of Maharashtra reported in 1979 SC 720 wherein it was held that the question whether or not time was the essence of the contract would essentially be a question of the intention of the parties to be gathered from the terms of the contract. It was further held therein that even where the parties have expressly provided that time is of the essence of the contract, such a stipulation will have to be read along with the other provisions of the contract and if, on construction of the contract as a whole it appears that the time for completion of the work by a particular date was intended to be fundamental, then time for completion of the contract will be deemed to be the essence of the contract, but when the contract includes clauses providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week then even if the work to be undertaken as per the contract remains unfinished on the expiry of the time provided in the contract, such Clause would be construed as rendering ineffective as the express provision relating to time being of the essence of contract, stood diluted by the penalty clause included in the contract.
Relying upon the said decision he contended that in the present case also the agreement regarding completion of the said transaction within a particular time as mentioned in Clause 10 of the said agreement stood diluted by the agreement contained in Clause 9 of the said agreement coupled with the subsequent conduct of the parties by which the parties themselves extended the period of contract by giving a go-bye to clause 10 of the said contract.
Mr. Chatterjee further contended that since the plaintiffs have paid all the municipal tax dues of the defendant No.1-9 in respect of the said property and caused the erroneous recording in the Municipal record corrected and got the name of the defendant No.1-9 recorded therein as owner thereof, and paid rates and taxes thereof to the Municipal authority even after the expiry of the stipulated period, it cannot be held that the plaintiffs were not ready and willing to perform their part of the contract particularly when it was proved that immediately after getting the title of the plaintiffs perfected, they approached the defendant Nos. 1-9 to execute a sale deed in their favour by tendering the balance consideration money to the defendant Nos. 1-9 He further contended that though it is true that the pleadings regarding the plaintiffs' readiness and willingness to perform their part of the contract, was not happily drafted in the manner as it should have been done as per the forms of pleading mentioned in the appendix to the Civil Procedure Code but since their pleadings are sufficient enough to indicate that they were ready and willing to perform their part of the contract and are still ready and willing to fulfill their part of the contract, their prayer for specific performance of contract ought not to have been denied by the learned Trial Court. In this regard, he has relied upon a decision of the Hon'ble Supreme Court in the case of Motilal Jain Vs. Smt. Ramdasi Devi & Ors. reported in AIR 2000 SC 2408 wherein it was held that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. It was further held therein that if the averments made in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiffs to fulfill his part of the obligations under the contract which is the subject matter of the suit, the fact that they are differently worded in the plaint, will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of the contract for sale.
Relying upon another decision of the Hon'ble Supreme Court in the case of Mst. Sugani Vs. Rameshwar Das & Anr. reported in AIR 2006 SC 2172 he contended that if any persons seeking benefit of the specific performance of contract can manifest that his conduct has been blemishless all throughout, entitling him to the specific relief, the Court cannot refuse to grant such relief to him for non-completion of the contract within the stipulated period due to the fault on the part of the vendor.
He submitted that delay was caused for getting the title of the vendor perfected for which the plaintiffs cannot be blamed.
He thus argued that when the plaintiff proved that a lawful and enforceable contract was executed between them and the defendant Nos. 1-9 and they were and/or are all throughout ready and willing to perform their part of the contract, the learned Court below ought not to have dismissed the suit. He pointed out that to prove readiness and willingness to perform their part of the contract, the plaintiffs proved that they caused the defective title of the defendant Nos. 1-9 perfected, paid all the arrear and current tax dues, procured a promoter to develop the suit property and got the tripartite draft development agreement approved by the defendant Nos. 1-9 and invited the defendant Nos. 1- 9 to complete the said transaction by tendering the balance consideration money to them, within the period of limitation and as such the Court below ought to have passed a decree in favour of the plaintiffs. He thus, invited us to set aside the impugned judgment and decree and to pass a decree for specific performance of contract in favour of his client.
Mr. Mukherjee, Learned Senior Counsel appearing for the respondent No.11 refuted such submission of Mr. Chatterjee by making three fold submissions before this Court which are as follows:-
1. The defendant No.10 being a transferee for value who paid the consideration money in good faith and without notice of the original contract which was entered into between the defendant No.1-9 and the plaintiffs for transfer of the suit property, comes within the exception Clause provided under Section 19(b) of the Specific Relief Act, 1963 and as such, even if it is found ultimately that the contract entered into between the plaintiffs and the defendant No.1-9 was subsisting still then the said contract cannot be enforced against the defendant No.10, who comes within the said exception Clause.
Mr. Mukherjee, learned Senior Counsel elaborated his submission by pointing out from the evidence on record that after entering into the agreement for sale with the defendant No.1-9 on 1st December, 2004, the said defendant caused a public notice published in the news papers like the 'Statesman' and 'Ananda Bazar Patrika' through his advocate intimating the public at large that his client viz., the defendant No.10 entered into an agreement for sale with the defendant No.1-9 for purchasing the suit property and also invited the public to intimate him and/or his advocate of any objection regarding the said transaction within a stipulated period and since the present plaintiff, in spite of having notice of such publication, did not come forward to intimate the defendant No.10 and/or his advocate about the subsistence of the contract executed between the plaintiffs and the defendant Nos.1-9, the said defendant No. 10 completed the said transaction with the defendant Nos. 1-9 immediately after the notice period stood expired, on payment of the consideration money for such transaction and by joining the person in occupation of the said premises in the deed of sale, who confirmed therein that he surrendered the possession of the said premises in favour of the defendant No.10 for the consideration mentioned in the said deed of sale executed by the defendant Nos.1-9 in favour of the defendant No.10. Mr. Mukherjee thus, contended that the defendant No.10 being a bona fide purchaser for value without notice of the agreement entered into between the plaintiff and the defendant Nos. 1-9 is protected under Section 19(b) of the Specific Relief Act and the contract entered into between the plaintiffs and the defendant Nos. 1-9 is neither binding upon the defendant No.10 nor the said contract can be enforced against the said defendant even if it is found that the said transaction was completed during the subsistence of the prior agreement entered into between the plaintiffs and the defendant Nos. 1-9. He thus contended that if the said contract is not enforceable against the defendant No.10, then it will not affect his client's title in the suit property, as he is also not bound by the contract entered into between the plaintiffs and the defendant No.1-9 Secondly, Mr. Mukherjee, learned Senior Counsel, contended that the plaintiffs having failed to prove that they were all throughout ready and willing to perform their part of the contract and are still ready and willing to perform their part of the contract, they are not entitled to get any relief by way of specific performance of contract.
By referring to the pleadings of the plaintiff Mr. Mukherjee pointed out that the plaintiffs simply stated in the plaint that they invited the defendant Nos. 1-9 to complete the said transaction by accepting the balance consideration money from them. Reading the agreement for sale, as a whole, Mr. Mukherjee pointed out that offering the payment of the balance consideration money by the plaintiffs to the defendant Nos.1-9 within the stipulated period, was not the only obligation to be discharged by the plaintiffs under the said agreement, as the agreement also provides that the plaintiffs will have to recover the possession of the suit property from the illegal occupier thereof within the time fixed under the contract.
Mr. Mukherjee further pointed out from the pleading that the plaintiff has not stated that he took any steps for recovering possession of the suit premises from the said illegal occupier thereof. The plaintiffs have also not stated in the plaint as to what steps they took for recovering possession of the suit premises from the said unauthorized occupier during the subsistence of the contract. He also pointed out from the plaint that the plaintiffs have also not stated that they have recovered possession of the suit premises from the said illegal occupier thereof and thus, they complied with all the obligations which they had to perform under the said contract, and payment of the balance consideration money was the only performance which was left out, so far as the plaintiffs were concerned.
By referring to the provision contained in Section 16(c) of the Specific Relief Act, Mr. Mukherjee also submitted that the plaintiff having failed to aver and prove that they were ready and willing to perform and are still ready and willing to perform their part of the contract regarding recovery of possession of the suit premises from the unauthorized occupier thereof, the plaintiffs are not entitled to get any relief for specific performance of contract.
Mr. Mukherjee, lastly contended that grant of the relief for specific performance of contract is the discretionary power of the Court under Section 20 of the Specific Relief Act. He has referred to a decision of the Hon'ble Supreme Court in the case of Lourdu Mari David & Ors. Vs. Louis Chinnaya Arogiaswamy & Ors. reported in (1996)5 SCC 589 wherein the Hon'ble Supreme Court laid down the principle as to how such discretion should be exercised by the Court. It was held therein that if the plaintiff seeking equitable relief of specific performance does not come before the Court with clean hands, the Court may, in its discretion, refuse to grant him the relief by way of specific performance of the contract. By referring to the pleading made out in the plaint Mr. Mukherjee pointed out that the plaintiffs repeatedly mentioned in various paragraphs of the plaint that pursuant to the contract entered into between the plaintiffs and the defendant Nos. 1-9, possession of the suit property was delivered to the plaintiffs by the defendant Nos.1-9 and they also sought for reliefs to protect their possession by way of injunction by making an untrue and incorrect statement as to delivery of possession of the suit premises to them by the defendant Nos. 1-9 which is a blatant lie as possession of the suit premises was never given to those plaintiffs by the defendants. He further pointed out from the evidence on record that it was proved that Surajit Kumar Mitra remained in possession and it was the defendant No.10 only who recovered possession of the suit premises from the said unauthorized occupier thereof and the said unauthorized occupier also confirmed delivery of possession of the suit premises to the defendant No.10 in the sale deed executed by the defendant Nos. 1-9 in favour of the defendant No.10, as a confirming party therein. He further pointed out that though the plaintiffs claimed in the plaint that they deposited a sum of Rs.2,26,801/- (Rupees two lakhs twenty six thousand eight hundred one) on account of payment of arrear and current taxes of the said premises but they could not produce any accountable receipt showing such payment by the plaintiffs to the Corporation on account of arrear taxes of the said premises. Though the plaintiffs in their evidence claimed that they paid said amount on account of the arrear Corporation taxes but in their cross-examination they failed to disclose the source of fund which was utilized by him for payment of such Corporation rates and taxes.
He further submitted that the payment of the said sum of Rs.2,26,801/-(Rupees two lakhs twenty six thousand eight hundred one) to the corporation on account of arrear rates and taxes of the said premises is a blatant lie as the plaintiffs themselves in thier advocate's letter written by Vabani Ranjan Chakraborty on 29th December, 2004 admitted that they spent a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand) in the office of the Corporation and/or in the Wakf office in respect of the suit property.
Mr. Mukherjee further pointed out that though the plaintiffs claimed that they took steps for correction of the erroneous recording of the Matwali's names as owner thereof in the Municipal records but the documents which were proved in evidence at the instance of the defendants show that such corrections were not made on the basis of documents admitted into evidence at the instance of the plaintiff.
He thus, contended that when the plaintiffs' claim for specific performance of contract, is based on certain false and incorrect facts, the learned Trial Judge according to him rightly refused to exercise his discretionary power to grant a decree for specific performance of contract in favour of the plaintiff.
In addition to the aforesaid submission, Mr. Mukherjee also contended that the suit for specific performance of contract dated 22nd April 2002, is not maintainable as the plaintiffs themselves virtually abandoned the said agreement as it appears from their advocate's letter dated 29th December, 2004, that they instead of demanding execution of the sale deed in pursuance of the agreement dated 22nd April, 2002, demanded execution of the deed of sale in pursuance of the earlier contract which was entered into between the plaintiffs and the defendant Nos.1-9 on 20th January, 2002. By reading said advocate's letter as a whole, Mr. Mukherjee pointed out that specific performance of the contract dated 22nd April, 2002 was never demanded by the plaintiffs through his advocate's letter dated 29th December, 2004. On the contrary, the plaintiffs invited the said defendant Nos. 1-9 to execute a deed of conveyance in their favour on the basis of an agreement dated 20th January, 2002. Since there was nothing on the record to show that execution of the deed of sale was even demanded by the plaintiff on the basis of the agreement for sale dated 22nd April, 2002, the instant suit for specific performance of contract is not maintainable as the cause of action for filing the said suit did not mature, for want of demand for execution of the sale deed in pursuance of the contract dated 22nd April, 2002.
He thus, invited this Court to maintain the decree passed by the learned Trial Judge and to dismiss the appeal.
Let us now consider the acceptability of the contention of the learned Counsel of the respective parties as mentioned above.
Here is the case where we find that sufficient stamp duty was not paid on the agreement for sale dated 22nd April, 2002. As such the said document was impounded by the learned Trial Judge. The plaintiff admittedly, did not pay the deficit Court fees after the document was impounded. As such, the document is inadmissible in evidence and if the document is inadmissible in evidence then no decree can be passed to enforce such inadmissible contract.
However, we find here that though the learned Trial Judge impounded the said document but at the same time the learned Trial Judge admitted the same into evidence.
In view of Section 36 of the Stamp Act if a document is admitted into evidence, admissibility of such document cannot be called in question subsequent to its admission into evidence. In our view, the learned Trial Judge ought not to have admitted said document into evidence when the document was not impounded. Be that as it may, since the document was ultimately admitted into evidence and none of the parties challenged the admissibility of the said document into evidence, the admissibility of such document into evidence cannot be called in question at the later stage in view of the provision contained in Section 36 of the Stamp Act and as such we hold that the relief for specific performance of contract cannot be denied simply on the ground that the plaintiff did not pay the deficit stamp duty after the document was impounded.
Let us now consider as to whether the test as laid down in Section 16(c) of the Specific Relief Act has been satisfied in the instant case or not. Section 16(c) of the Specific Relief Act provides that the plaintiff has to aver and prove that he was all throughout ready and willing and/or is still ready and willing to perform his part of the contract.
Though the plaintiffs stated in the plaint that they were all throughout ready with the fund and are still ready and willing to complete the said transaction on payment of the balance consideration money, but they have failed to aver and prove that they recovered possession of the suit premises from the unauthorized occupier thereof and/or the steps they had taken to recover possession of the suit premises from the unauthorized occupier thereof in pursuance of the contract entered into between the plaintiff and the defendant Nos. 1-9.
This is a contingent contract which cannot be materialized unless the possession of the suit premises recovered from the unauthorized occupier thereof.
The plaintiff did not take any step to recover possession of the suit premises from the unauthorized occupier. They, in fact, failed to recover possession of the suit premises from the unauthorized occupier. Possession of the suit premises was, in fact, recovered from the unauthorized occupier by the defendant No.10, who purchased the suit property from the defendant Nos. 1-9. As such, we hold that the plaintiffs have failed to prove their readiness and willingness to perform their part of the contract. Thus we hold that they failed to prove the condition as mentioned in Section 16(c) of the Specific Relief Act, and as such they are not entitled to get any relief of specific performance of contract.
That apart here we find that the defendant No.10 entered into an agreement for sale with the defendant Nos. 1-9 on 1st December, 2004 and immediately thereafter on 4th December, 2004 they caused a public notice published in the news papers namely the 'Statesman' and 'Ananda Bazar Patrika' through learned Advocate intimating the public at large that they have entered into an agreement for sale for purchasing the suit property from the defendant Nos. 1-9 and simultaneously they invited the objection from the public at large so that if anybody has any objection to the said transaction, he/she can lodge his claim to the said defendant and/or his learned Advocate within a stipulated period. Despite the plaintiffs had notice of the said publication they did not intimate the defendant No.10 and/or his learned Advocate about the execution of an agreement for sale on 22nd April, 2002 relating to the suit property and/or subsistence of any contract between the parties relating to the suit property. Thus, when the defendant No.10, without notice of the said agreement for sale entered into between the plaintiffs and the defendant Nos. 1-9, purchased the suit property from the defendant Nos. 1-9 on payment of consideration money, the defendant No. 10 being a bona fide purchaser for value without notice of the earlier agreement for sale between the plaintiffs and the defendant No.1-9, comes within the exception Clause mentioned in Section 19(b) of the Specific Relief Act and as such the agreement for sale dated 22nd April, 2002 executed between the plaintiffs and the defendant Nos. 1-9 cannot be enforced against the defendant No. 10 as he comes within the exception Clause under Section 19(b) of the Specific Relief Act. In our view the suit for specific performance of contract is not maintainable against the defendant No.10 and as such the suit must fail.
Though the plaintiffs have claimed that they spent a sum of Rs.2,26,801/-(Rupees two lakhs twenty six thousand eight hundred one) for payment of the arrear rate and taxes of the said premises to the Kolkata Municipal Corporation but they have failed to prove the accountable receipt to show that they, in fact, paid the said amount to the Municipal authority. The plaintiffs also in their evidence failed to disclose the source of fund which was utilized by them for payment of the said sum of Rs.2,26,801/-(Rupees two lakhs twenty six thousand eight hundred one) to the Corporation on account of Corporation rates and taxes. Their claim for payment of Rs.2,26,801 to the corporation is also disbelieved by this Court as we find that the plaintiffs themselves mentioned in their advocate's letter dated 29th December, 2004 that they have spent a sum of Rs.1,50,000/- ( rupees one lakh fifty thousand) as per the said agreement. That apart we find that the plaintiffs made a deliberate wrong statement in the plaint that they got possession of the suit premises from the defendant Nos.1-9 and also sought for relief to protect their possession therein on such wrongful claim. Thus, by relying upon the decision of the Hon'ble Supreme Court in the case of Lourdu Mari David & Ors. Vs. Louis Chinnaya Arogiaswamy & Ors. (supra). We hold that the learned Trial Judge rightly exercised his jurisdiction by refusing to grant the relief to the plaintiff under Section 20 of the Specific Relief Act, as the plaintiffs have not approached the Court seeking such equitable reliefs, with clean hand.
That apart we find that the plaintiffs never demanded for completion of the said transaction on the basis of the agreement for sale dated 22nd April, 2002. The advocate's letter written by Mr. Vabani Ranjan Chakraborty on 29th December, 2004 clearly indicates that the plaintiffs demanded specific performance of the contract dated 22nd January, 2002 and not of the contract dated 22nd April, 2002. Since cause of action of the suit was not founded on the basis of the demand for specific performance of the contract dated 22nd April, 2002 we also hold that the plaintiffs are not entitled to get any relief for specific performance of contract.
We cannot agree with the submission of Mr. Chatterjee that the time fixed for completion of the said contract in Clause 10 thereof stood diluted as the defendant Nos. 1-9 approved the draft agreement after expiry of the time fixed in Clause 10 thereof, as we find no evidence of approval of such draft by the alleged procured promoter.
However in connection with this appeal the appellant has taken out an application under Order 41 Rules 27 of the Code of Civil Procedure seeking leave to adduce additional evidence in this appeal. The first document which the plaintiffs have annexed to the said application is an application for entry of the names in the assessment register under Section 183 and separation/amalgamation of number(s) under Section 178(4) and apportionment under Section 178(2)(ii) (proviso) of the Calcutta Municipal Corporation Act, 1980, pursuant to which the plaintiffs claimed that they got the erroneous entry in the Municipal record as to the status of the suit property as a Wakf property represented by Mutwalis, was deleted at their instance.
On perusal of the said document, we find that it is mentioned in the column No.3 that the existing recorded owner was Ahamadi Begum. By the said application the defendant No.1 prayed for mutation of the names of the applicants in the place of Ahamadi Begum. That was not an application by which correction of the Municipal records relating to erroneous recording of the property as that of a Wakf property represented by the Mutwalis, was prayed for by the applicants. The plaintiffs' claim that correction was made by them pursuant to the said application, is absolutely a down right falsehood.
The next document i.e the letter written by Assistant Assessor of the Kolkata Municipal Corporation addressed to Md. Ali Asfar which was sought to be brought on record by way of additional evidence has already been exhibited in the suit as exhibit 11 and as such the said document need not be brought on record further by additional evidence in suit.
Some other documents which were annexed to this application are mere copies of the letters exchanged between Md. Ali Afsar and the Assessor Collector Tallygunge Tax Department, without bearing seal of the Corporation acknowledging the receipt of these letters. On perusal of these documents we hold that these documents are not necessary for deciding the real issues in the suit.
Photostat copies of the certificates of death of Sahabzadi Ahamadi Begum and Md. Ali Asgar Alias Pearay SB are also sought to be brought on record by way of additional evidence. These documents are in no way relevant for the purpose of deciding the issues involved in this suit.
Similarly, the application under Section 144 of the Criminal Procedure Code and the report of the Officer-in-charge of the Sonarpur P.S. submitted in connection with the said proceeding, have no relevance on the issue involved in this suit as the police report cannot be accepted as an evidence of possession of the plaintiffs in the civil proceeding. Police report is contrary to the evidence of the parties relating to the plaintiffs' claim for possession in the suit property. We have already held above that Surajit Kumar Mitra was is possession of the suit property and the respondent No.10 recovered possession of the suit property from him and delivery of possession by Sri Mitra to the respondent No.10 has also been confirmed by Mr. Mitra, as a confirming party in the sale deed, through which the defendant No.10 acquired tittle in the suit property.
As such, we do not find any necessity to allow the said application for additional evidence. The application for additional evidence thus, stands dismissed.
Since we do not find any merit in this appeal for the reasons as aforesaid we dismiss the appeal with cost of Rs.50,000/- (Rupees fifty thousand) to be paid by the plaintiffs to each of the defendant Nos.10 & 11 for involving them unnecessarily in such vexation litigation.
The appeal is thus, dismissed. The judgment of the learned Court below is thus, affirmed. Interim orders passed in this appeal stand discharged.
Let the lower Court record, if already has arrived at, be sent down to the court below immediately.
Since we have dismissed the appeal, no further order need be passed on the interlocutory applications. The interlocutory applications are thus, deemed to be disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J) I agree (Shib Sadhan Sadhu, J) later Immediately after delivery of the judgment, Mr. Mukherjee, learned Advocate appearing for the appellant, prays for stay of the operation of the judgment and decree passed by this Court .
Such prayer is opposed by Mr. Banerjee, learned Advocate, appearing for the respondent No.11.
Having regard to the fact that, the suit filed by the appellant was dismissed by the learned Trial Court and we affirm the judgment and decree passed by the learned Trail Court in this appeal, we decline to pass any order of stay as prayed for by Mr. Mukherjee as there is no executable order which is capable of execution.
(Jyotirmay Bhattacharya, J) I agree (Shib Sadhan Sadhu, J)